C.A. Rules Tribal Custom No Defense to Enforcement
Of Support Order in Dispute Over Gaming Revenues

By
a MetNews Staff Writer

California
courts need not defer to an Indian tribal custom protecting funds distributed
by the tribe to its members from a spousal support action by a nonmember, the
Court of Appeal for this district has ruled.

Div.
Six Thursday affirmed an order requiring a member of the Santa Ynez Band of
Mission Indians, one of the Chumash tribes, to pay more than $7,400 monthly in
temporary spousal support to her former husband.

The
ex-wife, Maria Jacobsen, has been drawing more than $300,000 a year in Indian gaming
revenues and depositing a substantial amount of it in stock brokerage accounts,
Santa Barbara Superior Court Judge James B. Jennings found. Her former husband,
Randy Jacobsen, testified that he works at a dairy farm owned by his parents
and owns a hay and feed business, earning on average less than $50,000 annually
in recent years.

In
opposition to her ex-husband’s request for temporary support, Maria Jacobsen
cited a federal law requiring states to accord “full force and effect” to
tribal ordinance or custom unless “inconsistent with any applicable civil law,”
along with a 2002 tribal resolution declaring it “the custom and tradition” of
the tribe that gaming funds “should not be provided, distributed or allocated
to nonmember spouses of Tribal members or nonmember ex-spouses of Tribal
members in the form of spousal support awards.”

In
declining to adhere to the resolution, Jennings
found it to be “counter to the very important policy and interest of the
State...in providing for support of families.” Several other Indian tribes
filed an amicus brief supporting Maria Jacobsen’s appeal, arguing that tribal
customs and resolutions are appropriate equitable factors to be considered in
setting spousal support.

But
Presiding Justice Arthur Gilbert, writing for the Court of Appeal, said the
tribal resolution was inconsistent with “strong public policy.” There is a
“mutual duty of support inherent in marriage,” the presiding justice explained,
and that duty continues after separation, subject to the family court’s broad
discretion and the supporting spouse’s ability to pay.

Gilbert
also pointed out that the order was addressed to the ex-wife and not the tribe,
and that the distributed funds were deposited by Jacobsen in personal bank or
investment accounts, so there are no issues of tribal immunity involved